O R D E R

Dated this the 17 th day of February 2021

The revision petitioner challenges the order in Crl.M.P.233/2013 in SC

No.365/2012 of the II Additional Sessions Court, Kollam, by which the sessions Judge, invoking Section 319 of Cr.P.C. added the revision petitioner herein along with another person as accused and, issued summons, calling upon them to face the trial.

2. The facts leading to the case, as is discernible from the records, is as follows; One Vijayakumar who was later examined as PW1, laid FIS on 24/11/1997 before the East Police, kollam, alleging that on that day at about

8.45 pm, while he was proceeding on a cycle with one Santhosh , they were attacked by a group of assailants who came in an Ambasador car. It was stated that, they were carrying sword and iron rods. Santhosh was greviously injured with the sword and he died on the spot. Petitioner, the first informant, also sustained injuries and he escaped from the spot. According to him eight persons came in the car out of which, he named six, which included member Ani and member Noushad. He could not mention the name of two other identifiable persons. Member Noushad, admittedly referred to the revision petitioner who was a member of the local body during the relevant time.

3, FIS was registered as Crime 1094/1997 for offences punishable under sections 143,147,148,324,302 read with section 129 IPC. Member Ani and member Noushad were arrayed as accused Nos. 5 and 6 respectively in the first information statement. In the course of investigation, the first informant gave section 161 Cr.P.C.statement that he referred to the name of member Ani and member Noushad on the basis of an assumption that they had participated in the attack. He further stated that the above persons were not involved. On the basis of it, final report was laid against seven persons excluding member Ani and member Noushad. Cognizance was taken and summons was issued to the accused in SC No.770/2002 for offences punishable under sections 143,147,148,324 302 read with section 149 IPC against seven persons. In the course of proceedings accused Nos. 2 and 7 absconded and remaining accused faced the trial. At the end of trial, accused 1,3,4 and 6 were found guilty of offences under section 302 IPC and they were convicted and sentenced to undergo imprisonment for life.

4. Thereafter, second accused surrendered and trial was ordered against him in SC No.365/2012. In the course of trial, the first informant -PW1 deposed about the presence of the revision petitioner and member Ani and that they came along with other accused in the car. He also asserted that ,the revision petitioner had instigated others to attack PW1. On the basis of the above version of PW1, an application was filed by the public prosecutor for invoking section 319 Cr.P.C.and to add the revision petitioner and member Ani as accused. By order dated 23/4/2014, the learned Sessions Judge added both the persons as accused invoking section 319 Cr.P.C. Summons were ordered to them. Revision petitioner herein challenged that order in Crl.R.P.No.923/2014. It was allowed and the matter was remanded for a fresh consideration in the light of the Constitution Bench decision of the Supreme Court in Hardeep Singh v. State of Punjab [2014 1 KLT 336 (SC)] . After the remand, by Annexure 4 order, the court arrived at the same conclusion and ordered summons to Ani and Noushad. This is challenged by Noushad in this revision petition. Pending the revision, the wife of the deceased got herself impleaded by order in Crl.M.A.2557/2016 on the basis that she was the wife of the deceased and thereby, and has substantial stake in the outcome of the litigation.

5. Heard the learned senior counsel for the revision petitioner, learned Additional Director of prosecution and